*1 S126664. Feb. [No. 2007.] of the Person of BEN C.
Conservatorship AGENCY, SAN DIEGO HEALTH AND HUMAN SERVICES COUNTY Petitioner and v. Respondent,
BEN Objector Appellant.
Counsel Nichols, Court, Diane under and L. appointment by Robert Supreme Visnick, under the Court of appointment by for and Appeal, Objector Appellant. Defenders, Inc., A.
Cheryl Geyerman as Amicus Curiae on Appellate behalf of and Objector Appellant. Sansome, Counsel,
John J. E. County Thomas Assistant Montgomery, County Counsel, Jr., Johnson, Leonard W. Pollard II and William A. County Deputy Counsel, for Petitioner and Respondent.
Opinion
CORRIGAN, J.
an indigent criminal defendant’s first
as a matter
appeal
right,
Court of
must
review the record if
independently
he or she
represents
has found no
issues.
arguable
(Anders v.
(1967)
I. Factual and Procedural It is Ben undisputed C. suffers from a appellant schizoaffective bipolar disorder. Evidence below established that he believed his food was being poisoned, his mental causing As a problems. he refused to eat consequence, and lost 21 in a month. He pounds also refused to take his antipsychotic medications, assaulted his father and grandmother, hallucina- experienced tions, masturbated publicly, assaulted female sexually staff and patients. trial,
After a bench the court found was disabled appellant gravely mental disorder and thus unable to for his basic provide needs. A conservator- reestablished, of his ship was person the least restrictive level of closed, available placement was found to be a locked treatment facility. (§§ (h)(1)(A), 5350.) subd. undesignated statutory All further references are to the Welfare and Institutions Code.
536 no to raise. counsel advised the Court of he found issues
Appointed Anders, Wende, 436, 738, 25 he supra, 386 U.S. and Cal.3d supra, Citing review the record. The Court of Appeal asked the court to independently the new and on the of briefing applicability requested under Act. Anders/Wende to the LPS proceedings conservatorship procedures held the Anders/Wende The Court inapplicable, of Appeal review, declined We the and affirmed the affirm judgment. independent of of the Court judgment Appeal.
II. Discussion Anders, 738, In 386 the United States Court supra, Supreme U.S. the court and counsel concludes addressed of counsel when responsibilities a criminal first there are meritorious issues in defendant’s appeal frivolous, case to after a wholly matter of counsel finds his be right. “[I]f it, of so the court conscientious examination he should advise and request must, however, be aby to That withdraw. permission request accompanied the arguably brief the record referring anything might support A the and time indigent of counsel’s brief should furnished appeal. copy chooses; him court—not counsel— allowed to raise that he the any points all a full the to decide then after examination proceeds, proceedings, the If it so finds it counsel’s wholly may grant whether case is frivolous. the insofar as federal withdraw dismiss request appeal requirements concerned, merits, law decision on if state so requires. or proceed hand, on merits On the other if it finds their any legal points arguable must, decision, it afford the (and frivolous) therefore indigent not prior (Id. 744.)2 assistance counsel to at argue p. appeal.” Anders, Wende, 436, supra, 25 supra, Cal.3d provided gloss that, “The Wende court 738. . . . stated view even if counsel 386 U.S. its fact, he need move to to lack basis in law or not believes appeal (1) thereby does advise the of his belief and withdraw so as he not court long himself, (2) that he informs defendant request disqualify (Sade 980.) 13 Cal.4th at supra, to relieve if he so desires.” court him Anders, 738, First, 386 U.S. we turn to the whether question v. Pennsylvania directly in LPS Act conservatorship applicable appeals. (Finley), Finley (1987) U.S. 551 L.Ed.2d 107 S.Ct. 1990] (Sade C.), we In In re Sade (1996) P.2d 716] C. 13 Cal.4th decided, Anders subjected to day it was been ‘consistent recognized that has “since Appeals: A Reevaluation Right to in ‘Frivolous’ Criminal (Note, Counsel severe criticism.’ criticism, 181, 212.) Tex. That the Guarantees Anders v. California L.Rev. (Id. course, authority.” fn. does affect its
537 declined to extend Anders to collateral attacks court high criminal upon convictions. The court noted that its cases “establish that to right counsel extends to the first (Finley, appointed no further.” appeal right, 555.) at aIf defendant “has no p. constitutional to underlying right appointed counsel,” the defendant cannot “insist on the Anders which were procedures (Id. that designed solely 557.) constitutional at protect underlying right.” p. 551, Finley, supra, Following reasoning 481 U.S. we held in 952, supra, Anders 13 Cal.4th that the do not procedures apply indigent from a court parent’s juvenile decision child appeal affecting custody (Id. terms, or 959.) status. at parental its Anders’s p. “By very ‘prophylactic’ are limited procedures in their applicability counsel’s criminal of an representation indigent there in only his first defendant—and as of An appeal right. indigent affected a state-obtained parent adversely decision on child status custody parental is not a criminal defend simply Indeed, ant. in which he is involved proceedings must be deemed to be (Id. in nature civil and not 982.) criminal.” at p. the same Anders/Wende
By reasoning, are not required from LPS appeals The conservatee conservatorship proceedings. is not a criminal defendant and the proceedings civil nature. (Conservatorship of Susan T. 1005, (1994) 40, 8 Cal.4th 884 P.2d 988] (Susan T.).) Relying Roulet primarily Conservatorship (1979) Cal.3d 219 [152 425, Anders, (Roulet), 590 P.2d Cal.Rptr. that appellant argues 1] 738, Roulet, 386 U.S. extended to such should be nevertheless this appeals. court held that due clause process of the California “[t]he Constitution requires a proof beyond reasonable doubt and a unanimous verdict jury (Roulet, applied conservatorship under the LPS Act.” proceedings at 235.) The rationale for the decision was of a appointment “[t]he conservator for and her appellant confinement in a mental subsequent hospital her will against deprived freedom in its most appellant basic aspects (Id. placed lasting stigma on her 223.) reputation.” court rejected (Id. “reliance respondent’s on a civil label.” at p. “[Respondent takes false comfort in the fact commitment is appellant’s only ‘civil’ However, confinement for remedial these are purposes. mere labels. Appel lant’s stay Camarillo State was not less Hospital because involuntary the state called her incarceration by one name rather than another. As the United written, States Court has Supreme ‘commitment authoritatively is will, deprivation It is incarceration liberty. one’s whether it against ’ (In re called “criminal” Gault or “civil.” (1967) 387 U.S. L.Ed.2d Court reiterated 1428].) S.Ct. In a subsequent Supreme opinion, need for labels and intentions do not themselves obviate the that ‘civil good (In .’ due . . . re 397 U.S. safeguards Winship criminal *9 process 368, 1068].)” (Roulet, 224-225.) at L.Ed.2d S.Ct. pp. 365-366 [25 however, this has the between recently recognized, analogy More court Act at best and under the LPS is imperfect criminal proceedings proceedings to the that not all of the in the former safeguards required and appropriate T, 1005, that the rule In Susan 8 Cal.4th we held exclusionary latter. supra, aims in “We find no between the similarity does not LPS apply proceedings. of the of law. have said of and act and those the criminal What we objectives (§§ 6500-6513) for the retarded is equally commitment proceedings mentally not under the act: ‘The commitment is true of conservatorship proceedings related, acts; it is of any or criminal necessarily initiated response, duration, the end and new limited at of one year petition expiring [citation]; the the same as an commitment subject procedures original interest, not .... The state need be a sole petitioner public prosecutor care, treatment, and is the custodial diagnosis, protec- legislatively expressed, take for their who are unable to care of themselves and who tion persons be in the and the of others cannot left adrift being safety own well The not be deemed reasonably commitment community. punishment It is either in its not criminal design analogous proceedings.’ purpose. T, has (Susan 1015.) As the United States Court at Supreme [Citations.]” “ inexorably mere fact that a is detained does not person observed: ‘[T]he the has government lead to the conclusion that imposed punishment.’ [Cita- harm If the from community ... detention for purpose protecting tion.] commitments necessarily involuntary constituted then all civil punishment, we never so held.” have to considered But have punishment. would 501, (Kansas 117 S.Ct. (1997) 521 U.S. L.Ed.2d v. Hendricks confinement under Predator Act Sexually Kansas’s Violent [involuntary 2072] held ex factor double and being punitive, jeopardy post principles inapplicable].) is whether the absence of the Anders/Wende
The salient
here
question
we
of erroneous
As
increases
risk
resolutions.
procedures significantly
below,
C.,
990-991.)
Sade
13 Cal.4th at
(See
it does not.
supra,
pp.
explain
due
clause did not
the exten-
that the federal
Concluding
process
compel
Anders,
C. court tracked the analysis
386 U.S.
Sade
supra,
sion
(1981) 452 U.S.
L.Ed.2d
v.
Social Services
Department
Lassiter
due
held
the Fourteenth Amendment’s
(Lassiter). Lassiter
We concluded in absence of the Anders would procedures not raise the risk of an significantly erroneous resolution. appellate “[O]ur consideration of the many cases that have before on come us for petition review reveals that conduct faithfully themselves C., (Sade as active advocates in behalf supra, indigent 13 Cal.4th parents.” 990.) at The of Division p. One of the Fourth experience District of Appellate the Court of (Ibid.) In In re Brian B. confirmed this conclusion. (1983) re 141 and In Joyleaf Cal.App.3d (1984) 397 W Cal.Rptr. 150 [190 153] 114], Anders Cal.App.3d Cal.Rptr. court had applied procedures to from appeals the termination of under the court parental rights juvenile However, law. decade, the having followed more than a it procedures discovered, reassessed its the have to best of position: our “[W]e present (In recollection, issues re unbriefed further attention.” warranting Angelica V. 295].) Cal.App.4th Accord it concluded (id. ingly, the were 1016) at and procedures “unproductive” p. V., overruled Brian Joyleaf B. and W. (Angelica 1012.) at p. child, state,
After the interests Sade C. balancing and parent, held that due an extension of Anders's does process compel to appeals cases child or regarding custody status. “Procedures that parental are like practically those in need ‘unproductive,’ not be into question, put no matter and place, many how how the interests that theoretically weighty (Sade their use.” supra, support 990-991.) 13 Cal.4th at pp.
A similar the conclusion that neither federal nor due analysis state supports extension of Anders/Wende process guarantees compel conservatorship appeals.
The
and
interests.
variety
public
LPS Act
promotes
private
its
are
the
and indefinite commitment
Among
goals
“ending
inappropriate
ill,
evaluation and treatment of
with
mentally
persons
providing prompt
disorders,
and
safe
guaranteeing
protecting
safety,
serious mental
public
review,
through judicial
committed
guarding
rights
involuntarily
treatment,
and
and
individualized
services
providing
supervision
placement
5001.)”
(§
for the
disabled
means of a
by
program.
gravely
conservatorship
I,
(iSusan
1009.)
at
8 Cal.4th
The Act also serves
protect
supra,
(§
ill from criminal victimization
subd.
from
mentally
(g))
forms of
endured
those unable to care for themselves.
myriad
suffering
interests at stake in a
liberty
conservatorship proceeding
signifi-
cant. A
to be
disabled
be
confined for
gravely
may
involuntarily
found
person
extended for additional
year,
to one
up
conservatorship
(§
so
as the
remains
disabled.
long
gravely
one-year periods,
person
restraint,
for whom a
addition
disabled
physical
gravely
person
“[t]he
has been
faces
loss of
other liber-
many
established
conservatorship
Moreover,
227.)3
(Roulet,
suffering
ties ...”
Cal.3d
person
in a
obviously
from a
mental disorder is
influence
grave
poor position
this
Legislature
monitor counsel’s efforts
his behalf.
Accordingly,
into
layers
court have built several
of important safeguards
conservatorship
*11
and
to serve all three of
These
are extensive
procedure.
safeguards
designed
(See supra,
the Lassiter/Sade C. considerations.
Before a be found to be person may disabled and to a gravely subject confinement, year-long the LPS Act for a calibrated provides carefully series for detentions evaluation and treatment. “The act temporary limits involun commitment tary duration, to successive periods increasingly longer with a beginning 72-hour detention (§5150), for evaluation and treatment which be may extended certification for 14 of intensive days treatment (§ 5250); that initial be extended for an additional period may if the days detained (§ 5260.) is suicidal. person . . . 14-day certification be [T]he extended for an additional for 30-day further intensive treatment. period (§ 5270.15.) Persons found to be imminently dangerous may involuntarily committed for to 180 up days (§ 5300.) beyond 14-day After the period. detention, initial 72-hour 14-day 30-day commitments each require certification hearing before an determine officer to appointed hearing probable cause for confinement unless detainee has filed a for the petition writ (§§ 5256.1, 5262, habeas 5270.15, 5275, corpus. 5276.) A 180-day I, commitment (Susan requires (§ 5301.)” court order. superior supra, Cal.4th at 1009.)
This series of culminate temporary detentions may in a proceeding determine whether person so disabled that he or she should be confined involuntarily to one (§§ 5361.) up year. Because of the stake, important liberty interests at correspondingly powerful safeguards against protect erroneous “The findings. conservatee proposed is entitled to demand a jury trial on the issue of his or her grave disability, has a right trial, counsel at if (§§ 5365.) necessary. seeking party imposition the conservatorship must prove conservatee’s proposed grave disability beyond reasonable doubt and the verdict must be issued by a unanimous jury. Roulet[, (Conservatorship supra,] 219.)” 23 Cal.3d T, (Susan 8 Cal.4th at p. *12 a
During one-year a conservatee twice for conservatorship, petition (§ 5364.)4 At rehearing. a a rehearing, conservatee need a only prove by of the preponderance evidence that he or she is no longer gravely disabled. (Conservatorship Everette M. 1567, (1990) 219 1573 Cal.App.3d [269 of Baber 182]; Court 955, Superior Cal.Rptr. (1980) v. 113 Cal.App.3d 966 [170 353].) The matter Tilbury (1991) v. Cal.Rptr. is tried the court (People 56, Baber, 288, 54 Cal.3d 64 1318]; 813 960-965), P.2d at Cal.Rptr. [284 pp. and the 5364, conservatee a again (§§ has to right 5365). counsel appointed 4 time, provides Section 5364 in pertinent part: “At may petition the conservatee However, superior court rehearing for a as to his status as a conservatee. filing after the of the section, petition rehearing first for pursuant petition to this rehearing further for shall be period submitted for a of six months.” a
A terminates the end of automatically year. conservatorship extension, (§ 5361.) If the a must conservator seeks one-year petition “[t]he a who have include the of two or licensed opinion physicians psychologists doctoral in and at five of years experi least degree psychology postgraduate that ence in the treatment of emotional and mental disorders diagnosis and (Ibid.) hearing conservatee is still disabled . . . .” At a gravely after its of reestablish a automatic the standard conservatorship expiration, counsel, a doubt and reasonable proof beyond rights appointed trial, (§§ court a unanimous verdict again or and to jury jury apply. 5365; (d), (1999) subd. Guerrero Conservatorship Cal.App.4th of 541]; Delay Conservatorship Cal.App.3d 1036-1037, 216].) fn. 6 Cal.Rptr. is entitled an of a the conservatee Finally, appeal conservatorship, counsel, court to the as occurred in this case. The rules of appointment on A Court of also create to ensure active safeguards advocacy appeal. now an must evaluate attorney’s qualifications appointment, divide its list into at least two levels based on experience appointments case, match with and review an the demands qualifications, attorney to determine whether they and evaluate counsel performance appointed level, level, on the on a should remain list at the same different placed Court, 8.300.)5 (Cal. be deleted from the Rules of rule list. sustained all remain
If a is conservatorship appeal, safeguards at the If a The still end of a year. effect. conservatorship automatically expires commitment, the conservator bears one-year again conservator seeks new has the again burden of a reasonable doubt. conservatee proof beyond counsel, trial, If the and a verdict. rights unanimous jury reestablished, rehearing the conservatee has renewed conservatorship rights. appellate described, layers Legislature,
By establishing protections court, and the Council have erroneous guarded against this Judicial vigilantly reflect conclusions in These proceedings. conservatorship defendants, while also to criminal many extension afforded safeguards termination conservatorship appeals parental rights than Appellant asserts there are fewer assertion, latter argues that in the appeals. Based on this he we should assume counsel in the former. Even assuming appeals perform conservatorship well than less counsel common, perform matters conservatorship it does not less follow *13 by directly most addressed incompetently. Any counsel’s would competence concerns about an training “require and It would be to refining process appointing the counsel. not further body and appellate to enter the appellate adjudicatory court to abandon its traditional role Clark, J.).) (Wende, (dis. supra, The pp. opn. 25 Cal.3d 443-444 arena as an advocate.” them at system carefully delimited. We confuse adversary and counsel our are roles of court in our peril. into account the essential between the two
taking systems. differences final, once a are the trial court criminal and sentence Ordinarily, judgment Code, (But (d).) Pen. subd. The loses to correct error. see jurisdiction § criminal defendant’s recourse then to the of review. The LPS only is courts and scheme is different because of the limit on commitments quite one-year of the conservatee to return twice to the trial court for reconsidera- ability tion during 12-month period. result,
As a trial court’s remains focused ongoing supervision condition, manner a conservatee’s current needs and different from quite criminal that followed in a context. trial court attention continuing Allowing ensures much more direct and intervention. It strikes appropriate Lassiter/Sade C. balance in a different It way. qualitatively provides conservatee with a more immediate avenue than that af for modification forded more cumbersome review. And it the focus keeps on the conservatee’s primarily current needs and rather than on a progress, consideration of retrospective conditions exist. For all longer these reasons we conclude that the current approach provides panoply to the safeguards geared and interests involved. appropriately specific goals The extension of Anders/Wende is thus not required. claim
Appellant’s rests on that criminal equal protection premise defendants LPS conservatees situated. fails. similarly premise “ Criminal defendants face but an LPS commitment not punishment, ‘may ” T, (Susan reasonably be deemed either in its punishment design purpose.’ supra, 1015.) 8 Cal.4th at Anders/Wende
Finally, us to extend appellant urges under our inherent decline to declare rules of California power We appellate procedure. to do so. Both the individual and the have a community interest profound the calibrated and treatment of those who suffer appropriate from grave mental While in a impairment. secure is a burden on placement setting freedom, basis, it is on a time-limited both the imposed, protect patient his neighbors. has an to ensure that freedom Society obligation impinged unnecessarily or for an The extensive upon inappropriate period. intervention, framework of modulated under the of both mental supervision courts, health and the has been created to that assur- professionals provide ance. another an undue Adding yet layer review would be expansion cases that have been so under full extensively supervised, panoply trial, doubt, afforded protections by jury reasonable proof beyond assistance of at least decline two counsel. We to extend a system we, ourselves, review that is not and that have constitutionally compelled “ ” recognized has been ‘consistent and severe criticism’ from its subject (Sade C., 13 Cal.4th at fn. inception.
544 If of for the Courts Appeal. the following guidance
We offer issues, no arguable finds in a conservatorship appeal counsel Instead, counsel to withdraw. not file a motion need not and should to be no issues arguable he or she has found (1) inform the court should and the facts (2) file a brief out setting applicable on and appeal; pursued dismiss the for the court to an basis a brief will adequate law.6 Such provide issues arguable raising Dismissal of appeal on its own motion.7 appeal VI, the California Constitution section 14 of with article is not inconsistent with reasons writing “be in causes determining that decisions requiring when the court a written served by requiring opinion stated.”8 is Nothing decide contested issues. any does not actually (2001) L. 89 Conservatorship Margaret We disapprove of Besoyan Conservatorship 675
Cal.App.4th 542] [107 of held they insofar 34 (1986) Cal.Rptr. 181 Cal.App.3d 196] [226 in conservatorship proceedings apply appeals Anders/Wende procedures the LPS Act. under Disposition
III. affirmed. the Court of is Appeal The of judgment J., J., Chin, Baxter, J., concurred. Werdegar, case, we address whether J., independent In this GEORGE, Dissenting. C. a conservatorship of from the imposition in an appeal review required Code, et Inst. 5000 (Welf. seq.; Act & § the Lanterman-Petris-Short under 6 right to file a and informed of the copy of the brief provided conservatee is to be supplemental brief. 7 course, appeal. to retain the appropriate find it may, The court 8 952, not err in Appeal the Court of did we stated that supra, 13 Cal.4th In Sade motion or its ‘reviewing power, inherent “A court has dismissing the as abandoned. appeals Witkin, (9 motion, not hear and determine.’ it cannot or should appeal dismiss an which own 508, 494.) judgment or order is (3d 1985) appealed-from An Appeal, § ed. Cal. Procedure 65, 557, Cal.Rptr. (1970) 564 2 Cal.3d (E.g., Superior [86 Court correct. Denham v. presumed Hence, doing, raise claims challenge. In so he must 193].) make a appellant must 468 P.2d authority on each (see ibid.), argument and ‘present or other defect of reversible error 576, (1979) Cal.Rptr. Cal.App.3d 591 (County [159 v. Lackner 97 made’ Sacramento point (1990) 278 accord, Cal.App.3d 1]; Ananeh-Firempong Marriage re In discretion, not, have abandoned be deemed to 83]). may, in the court’s does he Cal.Rptr. If he 109].) [1113,] Cal.Rptr. [(1985)] Cal.App.3d (Berger v. Godden appeal. his With no error or event, (Ibid.) appropriate here. Such a result is may order dismissal. it from, with presented was the Court against appealed the orders defect claimed other fortiori, no reason ‘points’—and, unraised to the merits proceed no reason (See 25 Cal.3d People Brigham v. question. modify the orders in reverse or even (Id. 100].) p.at P.2d Cal.Rptr. omitted.]” [Fn. 289 [157 *15 that the at stake are of the most Act).
LPS It is interests undisputed private nature, fundamental as the conservatee be to restraints may subjected upon lengthy freedom and autonomy periods, physical personal other civil as It also is that the state’s denied basic well. rights undisputed review is essen- interest in the additional avoiding independent procedure the the nonexistent. The consideration is risk that tially only remaining decision. The absence of review will lead to an erroneous independent in concludes that afforded a conservatee majority safeguards procedural the trial court review As unnecessary establish is independent appeal. below, because it is not counsel explained apparent appointed appellate acted have as active advocates in matters such as this and that errors have not been the overlooked on review is appeal, independent required pursuant in In re Sade C. (1996) established 13 Cal.4th analysis our decision by [55 (Sade 771, C.). P.2d 716]
I.
that Ben seeks to have
in the
case was
procedure
applied
present
493,
Anders v.
(1967)
established
U.S. 738
L.Ed.2d
[18
California
1396],
87 S.Ct.
in which the United States
Court concluded that
Supreme
constitutional
of substantial
and fair
can
requirement
equality
process
“[t]he
be attained
only
where counsel acts in the role of an active
in behalf
advocate
client,
Therefore,
(Id.
744.)
of his
to that of
amicus curiae.”
at
opposed
p.
when
counsel for a
defendant
that the
criminal
determines
appellate
frivolous,
is
file “a brief
appeal wholly
must
referring
anything
the record that
the
A
brief
might arguably
of counsel’s
support
appeal.
copy
should be furnished the
and time allowed him to raise
indigent
any points
chooses;
he
the court—not counsel—then
after a full examination
proceeds,
(Ibid.)
of all the
to decide whether the
proceedings,
case
frivolous.”
wholly
v. Wende
People
(1979)
Our opinion *16 and the has in the liberty the child. The a fundamental interest parent parent care, child, and his liberty of or her and derivative custody, management the in the and of the from just interest accurate resolution parent’s appeal of interests would re- Although arguably termination these parental rights. were “the ceive if review greater protection independent required, appealed- decision, adverse to the and is on detriment parent from which is predicated suffer, he caused or allowed his child to accurate and just. is presumptively C., (Sade 988.) The child an interest in supra, Cal.4th at has p. [Citation.]” “ ” “ ” home, or at least a and this interest family ‘normal home’ ‘stable’ “ “ ” ” (Ibid.) has been characterized as and ‘important’ ‘compelling.’ of child also has a interest in an accurate resolution liberty just derivative the the in view of the that based judgment but parent’s appeal, presumption child is a further on a of detriment to the accurate and there is finding just, that and needs and child are “the wants inconsistent.” presumption parent (Id. at p. 989.) ” “ has The state an interest in ‘urgent’ preserving promoting “ ” child, of the and an interest accurate and just
welfare ‘important’ C., (Sade 989.) It supra, of the 13 Cal.4th at parent’s p. resolution appeal. and burden reducing also “has a ‘fiscal and administrative interest in cost (Ibid.) concern with is merely Its proceedings.’ expense [Citations.]” [the] “ ” is but concern with resolution more important. its ‘legitimate,’ prompt (Id. at 990.) as is such as these ‘must be concluded as “Proceedings rapidly with . of time’ ‘may consistent fairness . . .’ A ‘period [Citation.] . . an adult . . . be a lifetime child.’ young seem . ... can long (Ibid.) of Anders/Wende To the extent application procedures [Citation.]” their conflicts with the interests application resolution delays appeal, resolution, child, they but to the extent an accurate they just promote correct, the child’s interests. Because the judgment presumptively promote however, “lies with someone other than his the child’s welfare presumptively (Ibid.) parent.” the risk that the absence of Anders/Wende review with
Finally,
respect
to an
resolution of the
court observed
will
lead
erroneous
appeal,
us
C. that “our consideration
cases that have come before
many
faithfully
for
reveals that
review
petition
conduct
themselves
as active advocates
in behalf of
...
indigent parents.
accord is the
of Division One of the Fourth
District of
experience
Appellate
recounted in In re
the Court
it
Angelica
V.
Appeal,
recently
Having
,
than a decade . .
the court
more
.
applied
procedures
question
discovered,
recollection,
declared
‘we have
to the best of our
present
(In
re
V.
[(1995)]
unbriefed issues
Angelica
further attention.’
warranting
(Sade
[1007,]
295],
added.)”
italics
Cal.App.4th
Anders/Wende
13 Cal.4th at
Because
court determined
“
”
would
it further concluded that
“need
procedures
‘unproductive,’
they
not be
into
no matter how
and how
the interests that
put
place,
many
weighty
sure,
theoretically
their use. To be
these
have
support
value, however,
value of
‘symbolic’
some kind.
Such
is too slight
[Citation.]
(Id.
990-991,
omitted.)
their invocation.”
fn.
compel
pp.
II.
*17
A.
The
interests at stake in an LPS
private
are
conservatorship
proceeding
than those
greater
involved in a
rights termination
parental
proceeding
some
are more
respects
significant
than the interests of a defendant
facing
criminal
The circumstance
that
charges.
the conservatee
be
may
civilly
confined in a mental
institution rather than criminally incarcerated does not
‘“ “
” ’ ”
alter the
‘massive curtailment
of
entailed
liberty’
by involuntary
219,
(Conservatorship
Roulet
restraint.
(1979)
23 Cal.3d
224
Cal.Rptr.
of
425,
l].)1
P.2d
590
Not
only may
conservatee be confined
he
involuntarily,
1
majority
appears
acknowledge
that the civil nomenclature and altruistic intentions
that characterize conservatorship proceedings
mitigate
ensuing
do not
the
impingement
drastic
on a
rights,
suggests
conservatee’s civil
but
opinion Conservatorship
that our
Susan T.
of
(1994)
40,
8 Cal.4th
Cal.Rptr.2d
acknowledgement
1005
884 P.2d
reflects
988]
ante,
civil and
537-538.)
criminal detainment are
(Maj. opn.,
different in nature.
at
This
pp.
suggestion ignores
specific
only
the
and limited issue resolved in that case. Susan T. decided
exclusionary
that the
rule
apply
proceedings,
purpose
does not
in LPS
because the
of the
rule—deterring
police
future unlawful
conduct—is not served in the context of such cases. A
conservatee,
mental health
protecting
worker’s concern is focussed on
the potential
not on
gathering
only
evidence to secure a
applying
conviction. Not
would the deterrent effect of
best,
exclusionary rule in
proceedings
marginal
application
LPS
be
at
of the rule would
T.,
(Susan
purposes
evaluating
treating gravely
frustrate the
of
persons.
disabled
at
1019.)
p.
suggest
Susan T. did
private
proceedings
any
that the
interests at stake in LPS
less
potential
fundamental or that the
curtailment
proceedings
of such interests in those
is
Thus,
recognized
Conservatorship
less massive than was
Roulet.
it is irrelevant to the
of
analysis
may
in this case that the
be
punishment.
conservatee
confined for reasons other than
Roulet,
(See Conservatorship
supra,
appellant
Not are the only private additional review of in favor of weigh affording but all of the interests private a child resolu- awaiting the situation where the proceedings—unlike final, denied a stable placement, of his or her status and is being tion there Because where a crime victim seeks resolution prompt appeal. conservatee) interest is affected (other is no than the whose party correct, is rebuttable the judgment presumption presumption C, Cal.4th at (See context. irrelevant to the in this analysis *18 correct, is rights judgment terminating parental presumptively 990 p. [because than the lies with someone other parent].) a child’s welfare presumptively B. factor, shares the conservatee’s due the state the second Regarding process Code, (See [legislative Welf. & Inst. interest in a correct adjudication. § indefinite, commitment involuntary intent to end the inappropriate, has a interest countervailing the state Although disordered mentally persons].) confinement, accuracy on the rights at issue do not bear and that “when issue is false results, to civil commitment procedural protections criminal have not extended courts proceedings”].) facility provided, further in a closed locked treatment placed The court’s order that Ben be matters, to routine medical right to refuse or consent among that he not have the other “[s]hall the recurrence of the conserva treatment and medication unrelated remedying preventing added.) allowed to make (Italics argument, Ben is not disability.” As noted at oral grave tee’s ingest aspirin. a tablet of the decision whether to interest has been this in of additional avoiding procedures, expense (Lassiter, supra, merely “legitimate.” as “hardly significant” described 28; In the context of see 13 Cal.4th 452 U.S. at in in appeals review should required whether evaluating independent that Act, it under the LPS appears pecuniary conservatorship proceedings to a declaration submitted According interest of the state is implicated. 1, 2001, Defenders, Inc., when March 2004 through from January Appellate counsel had been appointed this case was briefed in the Court of Appeal, District, and Wende briefs 14 LPS in the entire Fourth only appeals Appellate the instant matter. including had been filed in two of those only appeals, for the Fourth District handles approximately Court of Appeal Appellate six Courts of of all of the contested matters filed in California’s one-quarter Wende eight so if its a total of typical, approximately Appeal, experience briefs would have been filed in all of the Courts of Appeal during Even if Wende brief had been filed in LPS every appeal three-year period. 14 Wende briefs would have been filed in which counsel was only appointed, in the Fourth District those Appellate during years. addition, review, minimal time to themselves appeals require neither nor As lengthy
because arise from they proceedings complex. L. Margaret Conservatorship of Justice noted Crosby 542], did not find it too “We Cal.App.4th burdensome under or three hours to these circumstances two expend cases, all, review this record for issues. Such after terrorize arguable sparse us with the of extra as often discovered work about as prospect newly short,3 threaten to Earth.” are the records but asteroids collide with Not only issues were followed and legal presented—whether proper procedures whether sufficient the findings—are relatively evidence supports simple. 21,901 The Courts of had contested in fiscal filings year Appeal Cal., (Judicial 2004—2005. Council of 2006 Court Statistics Rep., p. available online at <www.courtinfo.ca.gov/reference/documents/factsheets/ Thus, 2007].) of Feb. our Courts of Calif_Juducial_Branch.pdf> [as the resources available to clearly perform negligible possess additional few cases. amount of work these required very conservatorship Wende do not counsel noted at oral Finally, county argument, appeals did county burden Not *19 any county agency. surprisingly, impose upon Wende file review in these cases not arguments opposition providing It is no until the Court of and this court directed it to also respond. Appeal Besoyan (1986) 181 Conservatorship that in the 20 since years surprise of held that Wende review must be provided 196], 34 Cal.App.3d Cal.Rptr. 3 case, transcript pages reporter’s transcript In the the clerk’s is 68 and the is 174 present pages. there has been no indication that our Courts of are LPS appeals, Appeal overburdened with those cases.
C. With to the third due factor—the risk of error if respect indepen- process determine dent review is not afforded—we have no means which to by been them- conducting whether have appointed appellate generally or selves as active advocates whether errors are overlooked being appeal.4 not review has been We do know how cases many independent performed, but the number We also do not know in how many is small. apparently quite over- of these cases additional has been ordered to address issues briefing Moreover, never has been looked counsel. even if supplemental briefing ordered, the of in which a brief has been filed number LPS Wende appeals number of cases which to statistically significant does provide upon base conclusions as to the overall counsel or performance be the likelihood that errors overlooked. of LPS a determination of
Not does only paucity appeals preclude issues, but that whether counsel in have overlooked practice arguable scarcity of cases even counsel from in this area of law. prevents specializing contrast, counsel who handle in criminal or cases have the juvenile appeals addition, in those areas.5 In the client in an opportunity develop expertise LPS is less than a criminal defendant or a proceeding presumably capable case, in the and and his or her counsel’s efforts parent monitoring assisting Moreover, the has no access to a law or even a library jailhouse lawyer. will beyond evidence in an LPS case involves often expert testimony conservatee, of the in contrast to the evidence in a criminal understanding case or a termination which will focus on rights parental proceeding, typically result, with are familiar. As a LPS actions events which litigants with little in this area of the prosecuted by attorneys experience appeals majority opinion characterizes the third factor as whether the absence of the additional ante, (Maj. opn., at “significantly increases the risk of erroneous resolutions.” Rather, C. Neither Lassiter nor requires “significant” increase in the risk. factors, error, weight balancing the risk of whatever its in a concept consistent with the context, support procedures, added the additional particular other factors together they against procedures. the factors that disfavor additional are balanced Courts, 21,901 According gathered by the of the to statistics Administrative Office 2004-2005, 11,501, year approxi in the in fiscal or contested matters filed Courts half, matters, 3,317, juvenile were mately approximately percent, were criminal Cal., Rep., (Judicial at Court Statistics available matters. Council of <www.courtinfo.ca.gov/reference/documents/factsheets/Calif_Judicial_Branch.pdf> [as 5, 2007].) Feb. *20 monitor or assist counsel. are in no to of clients who position
law on behalf
within
these
resides
for evaluating
appeals
The most
resource
knowledgeable
all
staff who handle
and their experienced
Courts of
justices
Appeal—the
or retained counsel.6
by appointed
LPS
whether prosecuted
appeals,
III.
trial
that
to
statutory safeguards
apply
relies
various
majority
upon
review would
conclusion that
to
its
independent
court proceedings
support
court
trial
safeguards governing
proceedings
not uncover errors. Procedural
the likelihood
in Lassiter because
considering
the court was
were relevant
of trial
in the trial court absent
appointment
that errors would occur
(Lassiter,
28-29.)
at
The issue in
counsel for
452 U.S.
pp.
parent.
are
in the trial
is not
further
required
case
whether
present
matter,
court;
whether,
establishes
appointed
it is
as
general
experience
and
all
identify
counsel will act as active advocates on appeal
appellate
in
issues. The
arguable
roughly equivalent procedural protections
provision
court to conclude in Anders
did not lead the
high
the trial of criminal cases
also
Extensive
unnecessary.
safeguards
review is
independent
procedural
are
in trial court
the termination
involving
parental
provided
proceedings
counsel at each
including
by
stage
proceedings,
rights,
representation
of clear and
notice of all
and advisement of
hearings
rights,
requirement
six-month
evidence to
removal of a child from
convincing
justify
custody,
that the child
review
at which there is a rebuttable
hearings
presumption
modification of an order at
should be returned to the
to seek
parent,
right
circumstances,
time
and a
almost
changed
right
every
based
any
appeal
295,
In re
H.
Marilyn
(See
order.
5 Cal.4th
307-308
( n ),
Code,
366.21, 366.26,
826];
& Inst.
subd.
851 P.2d
Welf.
§§
in Sade C.
395.)
our
analysis
These
statutory safeguards
part
played
6 According
majority, “[a]ny
competence
counsel’s
would most
to the
concerns about
training
It
directly
refining
process
appointing
further
and
counsel.
addressed
adjudicatory
role
an
‘require
appellate
would not be to
court to abandon its traditional
as
(Wende, supra,
body
pp.
arena
an advocate.’
Our review of criminal convictions and cases the termination of involving both of which arise from in which parental rights, numerous proceedings are not safeguards does safe- procedural provided, suggest procedural in the trial guards court the occurrence of errors correction preclude requiring on On the the numerous contrary, existing appeal. procedural requirements and restrictions rise to a give sometimes error. If the LPS greater potential Act is to fulfill its individuals from purpose protecting inappropriate confinement, it is that our courts be able to ensure that imperative appellate its followed. being failsafe,
Not are the in the Act only most those safeguards provided noted are irrelevant to a conservatee like Ben who by majority already has been confined for a The involuntarily significant “carefully period. calibrated series of detentions for evaluation and treatment” (maj. temporary ante, 541) occurred before the two recommitment opn., years proceeding case, at issue in this no assurance that his recommitment was provide error free or that his At the active appellate attorney provided advocacy. point at which the conservatee be committed or recommitted for a he or year, counsel, verdict, she is entitled to a unanimous jury proof beyond defendant, doubt—a reasonable situation similar to that criminal very facing who then will be accorded AndersIWende review on appeal. do not majority recognizes statutory safeguards implicitly prevent Instead,
the commission of errors in the trial court. the majority concludes cases, review is not in these because the trial court independent required and, time time from reexamine the of the must propriety conservatorship the trial court will correct errors in the majority speculates, proceed- different LPS scheme is because ings. According majority, quite “[t]he limit on commitments and the of the conservatee to one-year ability return twice to the trial court for reconsideration that 12-month during period, result, As a the trial court’s remains focused on a ongoing supervision [f] condition, conservatee’s current needs and in a manner different from quite trial attention that followed in a criminal context. court Allowing continuing ensures much more direct and intervention. It strikes appropriate C. balance in a LassiterlSade different way. It qualitatively provides that af- for modification than with a more immediate avenue conservatee And the focus review. it keeps forded the more cumbersome on a rather than current needs progress, the conservatee’s primarily *22 (Maj. that exist.” may longer of conditions consideration retrospective ante, at p. opn., for to that resort to the trial court relief is majority’s superior
The view court are raised the trial that contentions in actually review assumes appellate the trial court not repeat the the that will year of during conservatorship, errors, is no basis review is cumbersome. There former and that independent trial of We know whether for these do not assumptions. appointed for the of the conserva- year counsel file rehearing during routinely petitions recommitment, Moreover, contrast to for commitment or in torship. petitions rehearing must be by guardian, petitions which filed and proved public conservatee must be the conservatee and will be denied unless the brought by M. Everette (Conservatorship that he is not disabled. gravely or she proves 1567, Thus, 182].) these (1990) 219 while Cal.App.3d Cal.Rptr. the conservatee’s provide for the conservatee—if proceedings opportunity a is inclined such pursue proceeding—to attempt disabled, that he are not means or she is not prove gravely they promising which to trial erred in its of the case. establish that the court has handling It more that a trial rule or seems court would consistent likely apply in and leave it court the trial such cases to the to correct approach appellate Therefore, if it is the initial court review of wrong. propriety trial to be a more efficient and effective means to correct proceedings appears error. court not characterization as majority’s conservatorship proceedings ignores statutory trial court consider
retrospective requirement Code, (Welf. of the course mental illness & Inst. 5008.2 history § [historical has a direct mental disorder shall considered when course person’s determination of or is bearing danger whether upon person and is belied in the case.7 In contrast disabled]), by the record gravely present sentence, a criminal under the LPS Act conviction a commitment be extended based in the same evidence repeatedly, large part upon Hendricks Kansas v. (See inferences that original judgment. supported 346, 501, (1997) 521 U.S. L.Ed.2d 117 S.Ct. 369 [138 2072] [commitment county it is The forensic who testified in this case stated psychiatrist on behalf rely history illness. The important upon the records of the individual’s mental 2003, by an did not upon prepared who relied records individual who psychiatrist, testified the source of become involved in Ben’s case until 2001 or but whose records were concerning symptoms appeared. behavior his first information Ben’s when violent sexually is not for the and therefore predator purpose punishment Baber clause]; does not violate double Conservatorship of jeopardy 549-550 of double Cal.App.3d Cal.Rptr. 262] [doctrine does Because jeopardy apply these conservatorship proceedings].) build it is that errors in earlier proceedings upon past adjudications, important be corrected on so that proceedings erroneous appeal factfinding prior are not and do not affect future repeated adjudications. review in no Affording independent will diminish or interfere with the way in the trial court. procedural safeguards apply none of the summary, in the trial court procedural safeguards provided *23 ensures that counsel will act an active advocate on that appeal, appellate errors, counsel will not overlook or that errors will be corrected in the trial court before the case reaches the court. Just as the appellate procedural safeguards afforded criminal trials and the termina- proceedings involving tion of rights no basis which to conclude there parental provide is upon review, risk that errors will be overlooked absent these safe- independent do not afford a guards basis there is no risk that errors will be concluding overlooked in LPS cases. In of what is at light stake—fundamental interests individual, result, the state’s interest an accurate the strong ensuring review, lack of burden on the state in any and the lack affording independent of any reassurance that have acted appellate consistently as active (or advocates and do not overlook errors on that trial courts appeal routinely correct errors as over they LPS we set preside proceedings)—the analysis C, forth in 13 Cal.4th the conclusion that compels review is in LPS when independent required appeals appointed appellate counsel is unable to issue on identify arguable appeal.
IV. I note that Anders/Wende review the conclusion that is despite majority’s cases, not warranted in these the nonetheless counsel to file majority requires a brief out the facts and law and to to the setting applicable provide copy conservatee, and the affords conservatee a to file a brief. It right supplemental is unclear from the what the Court of to majority opinion Appeal expected do after it receives such a brief and contentions. any Presum supplemental the that someone within the court— ably, majority contemplates appellate staff under the direct of a evidently judicial attorney working guidance a central staff under justice, attorney guidance— similar perhaps working will review counsel’s brief and contentions submitted the personally Thereafter, it conservatee. to enable to determine whether panel justices ante, 7), fn. the be the would retain appeal (maj. opn., appropriate be to the analysis conveyed justices. briefs and related information and must this decided to exercise court’s it that the has Accordingly, majority appears all of the the Courts of upon Appeal supervisory powers impose court Anders/Wende that the requirement procedures except review the record. is for
All that to be in order to review provide independent remains done Court were followed that confirm Appeal proper as a guide, the order is evidence. With counsel’s brief by sufficient supported record, these and a short it should be an task to make determinations. easy in an LPS liberty massive curtailment of light imposed case, this its this court should exercise supervisory powers impose in order to ensure that additional burden Courts of negligible upon rights Legislature’s of these vulnerable litigants protected indefinite, commit- objective involuntary of preventing inappropriate, Code, (See Welf. & Inst. ment disordered is achieved. mentally persons §
V. to consider should be only remaining is whether point appeal *24 issue to by any resolved of written in absence way arguable opinion be to the that is served “[n]othing by decided. assertion Contrary majority’s not decide actually any written when court does requiring opinion ante, met 544), contested real interests are (maj. very by issues” opn., a brief an LPS This court has “the rendering recognized opinion appeal. due interest and worth dignity important process recognizing individual him an treating responsible as equal, fully participating Thus, which the member of . . . even in cases in society. [Citations.] action, alter the of governmental will not outcome decision-making procedure due nevertheless certain process may procedural protections require values, or, the individual in order to granted dignitary protect important words, terms itself fair in other ‘to ensure that the method interaction accountability—of are as what minimum standards perceived political beings modes of interaction which a collective that human judgment express own and that must be treated with under- in their important right, they v. (People and even Ramirez standing, compassion.’ respect, [Citation.]” 622].) (1979) P.2d Cal.3d 267-268 Cal.Rptr. that he or to the assertion of a disordered individual mentally responding Act, system under our judicial she should be free of constraints the LPS should more than an order provide summarily dismissing his or her appeal frivolous or abandoned. Our Courts of should demonstrate appropriate of the recognition interests of these individuals the minimal by undertaking effort to inform the required conservatee that the court has reviewed record and that in the specified evidence record the trial court’s supports order.
Unlike an in a criminal which opinion serves various institutional appeal, even if (see issue is identified purposes arguable v. People Kelly Cal.4th 547]), 146 P.3d in an LPS opinion appeal in which no issue is identified arguable will serve the interest of primarily to the conservatee in a responding and accountable There- dignified manner. fore, cases, in such a case will be brief. typical opinion In some very however, further comment will be An function of an appropriate. important in an LPS appellate case is to communicate to the trial court opinion have, concerns the Court of even if those do not Appeal may concerns rise to the level of an arguable issue. For in this case Ben example, was provided with an after he stated that he interpreter understood half of only what was Thereafter, said and being that he needed an when Ben’s counsel interpreter. him, examined counsel asked the to allow the examination to judge proceed without an have to interpreter, stating deal with the going “[Ben’s] world, world, the outside outside of locked He’s to have facility]. going [the he’s speak English, going have to be able to to communicate with begin The examination and people.” cross-examination of Ben took without place Ben then stated that he interpreter. again understood half of what the only judge counsel were and that saying, he needed an An interpreter. was for the interpreter provided remainder of the these proceeding. Although events rise to an give issue in the arguable context present case, it would be for the court to note in its appropriate opinion an individual need not be fluent in the in order to avoid English language circumstances, confinement in a mental institution under these and that an *25 should be to Ben in interpreter future provided conservatorship proceedings.
VI. majority’s review is not holding independent constitutionally in LPS in no required Courts of from appeals way prevents Appeal the minimal effort expending these with a second required provide appeals look and to notes the court has reviewed the provide opinion briefly (See record and that identifies the and evidence findings order. supporting Lassiter, U.S. . . . public policy require [“wise the Consti- tolerable under those minimally standards be than adopted
higher hours required few tution”].) I Courts encourage expend are not inappropriately these rare cases to ensure that conservatees confined, in a considerate and compassionate and to treat these individuals are frivolous them that their informing appeals than summarily manner rather have been abandoned. Kennard, Moreno, J., J., and concurred.